The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1887-09-20

on the one side by King street, one end
was bounded by the Bethel vestry build
ing, and on the opposite end by the
Anchor Saloon building, and along the
iterior line was a board fence 10 feet
high. There were two buildings on the
premises with a passage way between
them which covered the entire front OF
the lot.
The defendant admits he inspected
the premises and saw that it was 'shal-
low" previous to the sale, but denies
the statement of Mr.. Adams, the auc-
tioneer, that he paced off the frontage
on King street. He insists that he
based the bid at auction on the an
nounced area of "a fathoms and q feet,
and that it was figured for him by Mr..
Adams as containing 2, 331 square feet.
These statements are denied by Mr..
Adams. But however this may be, the
defendant says, he knew he was not
buying any part of the Bethel or Anchor
Saloon premises, and knew that the lot
as bounded by the fence was shallow.
On these facts think the case comes
under the principle held in Noble.vs.
Googins, 80 Mass, 233, where the Court
decline to allow a proportional abate
ment IN price, because the land in ques
ton, wharf lot in Boston, ''was stated
III the agreement to be bounded by ship
yards in the possession of persons named,
the limits of which would apparently
be manifest upon looking at the prem
Uses, ETC."
l think that, considering all the infor-
nation defendant had as to the size 'of
the lot, it cannot be said that there Is
gross mistake in the very essence OF
the contract, for the defendant well
knew exactly what Ire was buying
Other objections were made by defend
ant to the deed, ETC., but as they were
abandoned at the final argument | will
not discuss them here.
think the plaintiffs are entitled to
specific performance, and decree may
be taken out accordingly.
l. A. Thurston for plaintiffs, r. F.
Bickerton for defendant.
August Z, 1886.
The following decision was filed in
Court September 18th:
Heinrich Peterson ct al VS.. Joseph
Lazarus. April term in banco. Before
Judd, C. j., McCully and Fernandez, ].
OPINION OF CHIEF JUSTICE JUDD.
It is much to be regretted that we
have not the advantage of the opinions
of Justices Preston and Bickerton in this
case. Judge Preston having been coun-
sci for the defendant in the matter of the
sale of the land, and Judge Bickerton
having been counsel in the action before
me, both were objected to and did not
sit at the hearing on appeal.
The case has been a long time before
the Courts. owing largely to the fact that
the plaintiffs reside in Germany, which
has occasioned great delay in communi-
eating with them.
found in my opinion filed August Z,
1886, that the defendant was sufficiently
well acquainted with the nature and eX-
tent of the premises offered to be sold as
not to be deceived by the false descrip-
ton in the advertisement of sale, and
that therefore it could not be said that
there was gross mistake in the essence
of the contract. [ do not retire from
that opinion, but affirm it. l said in my
opinion that other objections were made
by the defendant as to the sufficiencY of
the deed rendered, ETC., which were
abandoned at the argument before me-
But it does not appear in the record that
their objections were waived, and on a
change of COUNSEL they are renewed on
appeal, which, as repeatedly held,
brings the case before the appellate
Court de nooo.
1t is claimed by the defendant there
is no contract of sale between them
selves and defendant. The contract as
disclosed by the auctioneers' sales-boolz,
is between II. F. Glade, administrator
of the estate of H. Schriever, deceased,
and one Joseph Lazarus, whereas GER
tain persons, to wit, Heinrich Peterson
and others, claiming to be heirs of the
deceased H. Schriever, ask for specific
performance of contract made be-
tween them and defendant
If the defendant had relied upon this
at the beginning, and had not negotiated
with the plaintiffs attorney for a deed
from the heirs of Schriever, ! think this
objection would be fatal to the plaintiffs
obtaining the relief asked for But
specific performance is never enforced
unless the Court is satisfied that agood
title is offered to the defendant. 1t
would be quite within the power of the
defendant to say that he is satisfied with
the conveyance rendered, and in that
case the Court would be relieved from
passing upon it. 1t now being objected
to, cannot say that there is sufficient
proof that the parties executing it are
tho hoirS of Fl Schriavor SinOa the